Kenya should use poll chaos case to strengthen its justice system

• Africa must prove to the world that she is ready, willing and able to end impunity

At that critical moment, the pre-eminence of national courts over the International Criminal Court jurisdiction won the day and saved the statute, leading to its adoption through a vote.

Seven states voted against the Statute while 120 voted in favour and another 21 chose to abstain. The critical mass of 120, mainly developing countries was only attained after the concept of complementarity principle was finally entrenched in a manner that avoided ambiguity or vagueness on the pre-eminence of national jurisdiction over the ICC.

Among the countries that voted against the Statute in Rome were China and United States of America. China expressed concern over an overzealous prosecutor who could abuse his powers.

The United States’ principal objection was over the concept of jurisdiction and its application over non-state parties.

This illustrates how far states were willing to go to protect the sovereign right over their nationals.

The Mbeki panel on Darfur appears to have been fully aware of these political sensitivities and decided to navigate carefully to avoid offending both the word and spirit of the Statute of the ICC.

But, the casual, and one might add, arbitrary way in which the Waki Commission invokes the jurisdiction of the ICC in paragraph 5 of the recommendations contained in Chapter 13 of the Report cannot escape criticism.

Yes, we must deal with impunity firmly and resolutely.

However, the integrity of the legal reasoning behind forwarding the names to The Hague and the invitation extended to the Prosecutor to investigate and prosecute appears questionable.

The fallacy in this is the false presumption that failure to establish a Special Tribunal by Parliament or subversion of its work, can in itself trigger the International Criminal Court to supercede any other national remedy.

Apart from the fact that the available government options for prosecutions have not been exhausted, the Waki report unfortunately only presents one means of establishing a judicial modality for addressing the crimes associated with post election violence.

It follows therefore, the entry of the ICC Prosecutor is both premature and clearly inconsistent with the letter and spirit of the Statute. There is another angle to this debate that needs to be brought out.

At a time when Africa is striving for homegrown solutions for African problems; at a time when the ICC justice is being unfairly criticised as an imposition if not a plot by the West; at a time when ICC justice is perceived to be far removed from victims of crimes in whose name prosecutions are brought; at a time when her leaders are crying foul when African leaders are dragged to far away Europe for prosecution, Kenya cannot afford to miss the opportunity to demonstrate that Africa can deliver independent fair and impartial justice.

Victims of crimes

A unique opportunity presents itself for Kenya to strengthen its justice system and prove to the world that Africa is ready, willing and able to play its part in ending impunity by holding individuals responsible for crimes they commit.